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Physicians and Euthanasia in the United States: Exploring the Likelihood of Criminal Prosecution

Abstract

Research findings indicate that some physicians throughout the United States have intentionally hastened the death of their terminally ill patients. While the actual incidence of such conduct is unknown, and the practice of euthanasia is illegal in all fifty U.S. states, few physicians have ever been prosecuted. Are these infrequent prosecutions due to the difficulty in detection or merely reflects the conscious decision by prosecutors not to pursue such matters? In an effort to explore this question, a self-administered mail survey was sent to all chief prosecutors in four U.S. states. Aside from the open and closed ended questions, prosecutors were presented with a vignette which was based on an actual event in Oregon where a physician hastened the death of a terminally ill patient by administrating a neuromuscular blocker without ventilation. Response rates were very acceptable; one state achieved nearly ninety percent and the overall response rate was seventy-six percent across all four states in the survey. Results indicated that the likelihood of criminal prosecution for hastening the death of a dying patient was relatively low; few prosecutors were inclined to pursue criminal charges and would rather refer the matter to the state medical board for administrative review. Almost half of the prosecutors believed that in some circumstances a physician-administered lethal injection may be morally justified even if it was illegal. While detecting incidences of euthanasia will remain difficult, even if such conduct is discovered, the likelihood of criminal prosecution appears rare.

[Word count: 243 words]

Keywords: Euthanasia, physician, criminal prosecution, neuromuscular blocker, lethal injection, paralytic agent

[Full word count (entire file): 8,275]

Introduction

The legal acceptability of both euthanasia and physician-assisted suicide continues to be debated throughout the world. Over the past decades, several countries and some U.S states have either legalized the practices or specifically prohibited them (Hillyard & Dombrink, 2001, 211-220; Chochinov & Wilson, 1995: 595-597; Humphry, 2004; Humphry & Clement, 2000; Bumgardner, 2000). In the United States, only physician-assisted suicide (PAS) is legal only in Oregon; the practice of euthanasia remains illegal in all fifty states (Meisel & Cerminara, 2004: 12-35; Quill, 2004: 2031; Hillyard & Dombrink, 2001). Yet despite the almost universal illegality of both practices, there is ample evidence that American physicians have intentionally hastened the death of their terminally ill patients by either providing a lethal prescription for their patients to self-administer (physician-assisted suicide), or by directly injecting their patient with a lethal bolus (Emanuel, 2002; Meisel & Cerminara, 2004: 12-39; Emanuel, Fairclough, Clarridge, Blum, Bruera, Penley, et al., 2000; Emanuel, Daniels, Fairclough & Clarridge, 1998; Meier, Emmons, Wallenstein, Quill, Morrison & Cassel, 1998; Back, Wallace, Starks & Pearlman, 1996). Aside from those physicians who may intentionally hasten the death of their patients, there is likely an even larger group of physicians who unintentionally hasten a patient’s death during the course of aggressive palliative care (see Anon & Anon, 2003). Although the death of a patient under these circumstances will often be ethically justified by the principle of double effect (Fohr, 1998), it is important to note that the principle of double effect is just that -- an ethical principle, not a legal one (Cantor, 2001: 186; Cantor & Thomas, 1996: 108; Anon & Anon, 2003). While some argue that an ethical doctrine has been converted into a legal one (see, e.g., Alpers, 1998: 319), others argue that the “criminal law principles of recklessness and justification” are more appropriate (Cantor, 2001: 186). Nevertheless, many physicians fear that should their terminally ill patients expire during the course of aggressive palliative care, they run the risk that their actions could be misconstrued as euthanasia and thus expose them to criminal charges (Conlan, 1999: 86; Orentlicher & Caplan, 2000: 255-256; Shapiro, 1994: 149; Meisel & Cerminara, 2004: 6-96, 6-98; Anon & Anon, 2003). In fact, it is this fear of investigation or prosecution which may lead some physicians to take the “safer” approach by undermedicating their dying patients (Meisel, Snyder & Quill, 2000; Anon & Anon, 2003). While such an approach appears logical on its face, underprescribing will result in needless patient suffering (Hill, 1993), and the physician will still run the risk of civil or administrative sanctions for the under treatment of pain (see e.g., Bergman et al. v. Wing Chin, M.D., Eden Medical Center, No. H-205732-1, Alemeda Superior Court (2001); Meisel & Cerminara, 2004: 6-100; Guglielmo, 2002). But whether the physician intentionally or unintentionally hastens a patient’s death, two things remain clear: the actual incidence of euthanasia and PAS in the United States remains unknown (Emanuel, 2002: 150), and relatively few physicians have been prosecuted for intentionally hastening the death of their terminally ill patients (Meisel & Cerminara, 2004: 12-39; Alpers, 1998; Chochinov & Wilson, 1995: 596; Gostin, 1993: 97). Consequently, the question becomes whether the infrequent prosecutions are the result of reporting bias as Alpers (1998) recognized, or instead a conscious decision by prosecutors not to pursue such matters? In other words, how likely is it that a physician would be investigated or prosecuted for intentionally hastening the death of their patients? This question becomes important not only to those few physicians who may actively engage in euthanasia (Emanuel, 2002: 151), but to the many more physicians who only intend to aggressively treat the symptoms of the dying but fear that they would be suspected of euthanasia should the patient expire. If the results of this pilot study indicate that prosecutors are less inclined to prosecute a physician for the intentional hastening of a patient’s death, it would seem reasonable to believe that prosecutors would be even less inclined to prosecute those who unintentionally hasten the death of their patients during the course of aggressive palliative care. Consequently, physicians could focus more on palliating the symptoms of their dying patients and less about whether their actions could be interpreted as active euthanasia.

The present study

How do prosecutors view matters relating to hastened death, particularly euthanasia? In an effort to explore this question, the instant article seeks to go beyond the limited number of published prosecutions by exploring the opinions of prosecutors on the topic of euthanasia and the legal risks associated with hastening the death of the dying. This study builds upon earlier research which focused on prosecution and end-of-life decision making, particularly the research pioneered by Alpers (1998) and Meisel, Jernigan & Youngner (1999). Before discussing the methods and results of this study, it would be helpful to provide some background on the American prosecutor, their role in the administration of justice, the decision to charge, and the difficulties associated with the prosecution of health care professionals.

Prosecutors

In the United States, there are essentially three branches of government: the legislative, judicial, and executive. While many of their functions have been known to overlap, the legislative branch essentially passes laws, the judicial branch interprets, and the executive branch enforces (Zalman, 2002: 2-7). The American prosecutor is an executive branch official who, in most jurisdictions, is elected and serves a particular term of office before becoming re-elected or defeated in a public election (Gordon & Huber, 2002: 335; Jacoby, 1980: xv). Moreover, as an elected official, the prosecutor is not only a representative of the community (Gordon & Huber, 2002: 334; Jacoby, 1980), but an officer of the court whose job is to seek justice, not necessarily a conviction (see e.g., Illinois Rules of Professional Conduct, 3.8). One of the first steps in the administration of justice occurs once a prosecutor charges a person with a crime (Zalman, 2001: 420; Jacoby, 1979, 1980; Gordon & Huber, 2002). While a court may ultimately dismiss a charge for lack of evidence, or a jury may later acquit a defendant at trial, the amount of proof that is necessary to initially charge a suspect with a crime is only probable cause, not proof beyond a reasonable doubt (the standard of proof necessary to secure a criminal conviction) (Zalman, 2001: 420, 444). And while juries have acquitted defendants for lack of evidence, they have also been known to find defendants not guilty even though the facts to support a conviction were present, by virtue of what is known as jury nullification (Finkel, Hurabiell & Hughes, 1993). But an eventual dismissal or later jury nullification may be of little consequence to a defendant who must endure a myriad of personal and financial costs before being discharged from the criminal justice system. It is for this very reason that many have regarded the power to charge a person with a crime as the most significant decisions a prosecutor can make (Spohn, Beichner & Davis-Frenzel, 2001: 206; see also, Jacoby, 1979, 1980; Cole, 1970; Miller, 1969). In fact, former U.S. Supreme Court Justice Robert H. Jackson recognized that the American “prosecutor has more control over life, liberty, and reputation than any other person in America” (Jackson, 1940: 18; Anon & Anon, 2003: 77). While the power to charge a person with a crime remains significant, prosecutors also have the discretion not to charge a person with a crime, even if the facts could arguably support a conviction (Miller, 1969; Anon & Anon, 2003). So, what determines whether a person will be charged or not charged with a crime? Albeit there are many factors associated with the charging decision, one key variable is convictability – the ability of the prosecutor to obtain a conviction in his or her community in light of both the offense and offender (see Frohmann, 1997: 535; Spohn, et al., 2001: 207; Jacoby, 1979, 1980; Thomas & Fitch, 1976; Cox, 1976; Miller, 1969; Cole, 1970, 1973; Anon & Anon, 2003). And because the local environment and the “nature of the population he represents” plays a significant role in whether a conviction could be obtained (Jacoby, 1980: 47), it is entirely possible that a prosecutor from one jurisdiction could decide to bring charges against a defendant based on their own reading of community sentiment, while a prosecutor in another state or jurisdiction could decline to bring charges based on the same set of facts (see Anon & Anon, 2003; Benson & Cullen, 1998). Bottom line, prosecutors have limited resources and must pick their battles wisely; the failure to read or predict community sentiment could result in jury nullification and even defeat at the next election (Finkel et al., 1993; Kaplan & McKeon, 1999: 273).

Prosecutions involving Physicians

As noted earlier, euthanasia remains illegal throughout the United States. Physicians who intentionally hasten the death of their patients, even with the consent of the patient, could be charged criminally with murder or a lesser-included offense such as manslaughter (Meisel & Cerminara, 2004:12-36; Alpers, 1998: 310; Gostin, 1993: 96; Kirkland, 1994: 39). But reports of prosecutions involving physicians are limited (Meisel & Cerminara, 2004; Anon & Anon, 2003; Alpers, 1998; Gostin, 1993), and those in the context of hastened death appear to be more about serial killers than health-care workers motivated by compassion (see Kinnell, 2000). Even Jack Kevorkian, a Michigan physician who was acquitted on three separate occasions for assisting in suicides, would likely be free today had he not switched from PAS to euthanasia, challenged prosecutors to charge him on national television, and later decided to represent himself in court. In fact, the newly elected prosecutor in Michigan had run on a platform of not prosecuting Jack Kevorkian for his assistance in suicides (even though such conduct was arguably illegal) (Kaplan & McKeon, 1999: 273). In the end, while some argue that the prosecution of physicians may be increasing (Liederbach, Cullen, Sundt & Geis, 2001), prosecutions stemming from end-of-life care are extremely rare (Alpers, 1998: 324), and several reasons for this exist. First, inappropriate conduct in the health care environment is difficult to detect (Anon & Anon, 2003; Alpers, 1998; Jesilow, Pontell & Geis, 1985; Meisel et al., 1999; Friedrichs, 2004). The criminal justice system in the United States is largely reactive and must depend in large part on informants (Alpers, 1998: 315; Friedrichs, 2004). Doctor-patient communications are private matters and many of the prosecutions involving health care providers stemmed from breakdowns in communication, disagreements among family members, or complaints initiated by other health care providers “rather than suspicious or overzealous prosecutors” (Alpers, 1998: 311; Anon & Anon, 2003). Secondly, patient condition matters. Although Anon & Anon (2003) found that when dealing with chronic pain, the likelihood of being prosecuted was greater in some states than others -- they also found that the patient’s condition mattered: prosecutors were more concerned about a physician dispensing opioids to a chronic pain patient than a physician who was aggressively treating the pain of a terminally ill patient who subsequently expired during the course of treatment (Anon & Anon, 2003). Moreover, Meisel & Cerminara (2004) speculate that the limited number of reported prosecutions for PAS and euthanasia “may result from the fact that . . . perpetrators are not indicted, indictments are dismissed, juries refuse to convict even when evidence of factual guilt is quite clear, judges are lenient in sentencing, parole boards grant parole, and governors grant pardons” (Meisel & Cerminara, 2004: 12-41).

Methods

Physicians and Euthanasia: Part II of a Three Part Study

In an effort to explore the likelihood that a physician would be investigated or prosecuted for committing euthanasia, a self-administered mail survey involving chief prosecutors from the states of Connecticut, Maryland, Oregon, and Washington was conducted from November 2001 until March 2002. The original questionnaire contained twenty-nine questions with a section for additional comments. The first part of the questionnaire focused on the likelihood of prosecution stemming from the aggressive treatment of pain; those results have been published in both the United States and India (Anon & Anon 2003; Anon & Anon, 2004). The second part of the questionnaire focused on euthanasia and the likelihood of prosecution and is singularly reported here (see Appendix B for an excerpt of the original questionnaire). When appropriate, tables from the first study will appear in the appendix for ease of reference (with permission of the publisher). Oregon and Washington were chosen for the purpose of comparing two sister states in the west, one of which had legalized PAS; Connecticut was chosen because of its location in the east coupled with the fact that an earlier pain study had been conducted in that state and the prosecutors there were appointed, not elected. The selection of Maryland was not intended at first, but in light of the assistance provided by the Attorney General, coupled with its location in the eastern U.S. and size of the state, Maryland was added to the sample (for a further discussion of state selection, see Anon & Anon, 2003). The questionnaire was subjected to pre-testing and earlier Institutional Review Board (IRB) approval was secured at the time of data acquisition, as well as during the subsequent analysis and publication of the results.